Mental & Physical Disability Law Reporter - Highlights
Each issue contains a Highlights section that focuses on key federal and state court opinions, legislation, and regulations within that issue and discusses key legal trends. subscribe now !
Sample Nov./Dec. 2010 Issue
Expert Testimony 
The New Jersey Supreme Court declared that no manifest error and injustice occurred when a trial court prohibited a defense psychiatrist from testifying that defendant’s confession had been false due to his fear and anxiety of being interrogated by police. Under N.J. Rule of Evidence 702, expert testimony is only admissible if it addresses a subject beyond the understanding of the average juror. The defendant already had testified that he feared for his life. New Jersey v. Rosales, 998 A.2d 459 (N.J. Sup. Ct. 2010), 34 MPDLR 827; [004(a)(v)].
Civil Commitment [1.01]
The Illinois Supreme Court—overruling several prior state appellate court rulings—found that the state may begin new involuntary civil commitment proceedings for a respondent who remains in physical custody in a mental health facility due to a prior voluntary commitment, but whose involuntary admission petition has been dismissed. The requisite statutory 24-hour period in which involuntary admission petitions must be filed for voluntary patients begins to run when the new petition is presented to the facility director, and not on the date that the respondent originally entered the facility. In re Andrew B., 930 N.E.2d 934 (Ill. Sup. Ct. 2010), 34 MPDLR 830; [1.01(a) & (c)].
The Pennsylvania Supreme Court held that 71 Pa. Stat. §1690.112a (Act 53), which permits parents or guardians to petition to have their child involuntarily committed for drug and alcohol treatment, does not violate the constitutional due process provisions of Parham v. J.R., 442 U.S. 584 (1979), 3 MDLR 231, because the statute still requires a formal petition by the parent or guardian; an assessment by a medical professional; a formal hearing prior to commitment, which includes the right to counsel; testimony before a judge to establish the propriety of commitment by clear and convincing evidence; the cross-examination of witnesses; and periodic review embracing the same protections every 45 days. A dissent cautioned, however, that the risk of error was too great, given that an initial commitment can last up to 45 days, can be extended if the court finds that the minor will continue to benefit, and does not require proof of any risk of immediate bodily injury or death. In re F.C., III, 2 A.3d 1201 (Pa. Sup. Ct. 2010), 34 MPDLR 829; [1.01(g)(i)].
Protective Services [1.03]
Pennsylvania passed a new Adult Protective Services Act, providing protection of adults between the ages of 18 and 59 who lack capacity to protect themselves and are at imminent risk of abuse, neglect, exploitation, or abandonment. The law establishes a uniform statewide reporting and investigative system for suspected abuse, neglect, exploitation, or abandonment. Significantly, adults living in private residences with relatives and other caregivers are protected under the law. Local protective services providers are mandated to investigate where reasonable cause exists to believe that there is an imminent risk to the person or property. The receipt of protective services by the person in need is voluntary, unless the services are part of an emergency order based on clear and convincing evidence of an imminent risk of death or serious injury. Such an order should include appointment of legal counsel. Pa. S.B. No. 699 (2010), 34 MPDLR 988; [1.03(d)(i)].
Civil Incompetency [1.04]
The First Circuit, citing Holland v. Florida, 130 S. Ct. 2549 (2010), held that while under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. §2244(d)(1), an inmate’s mental illness can equitably toll the one-year statute of limitations for filing state habeas petitions, petitioner had to show that his paranoid schizophrenia severely impaired his ability to effectively pursue legal relief. Riva v. Ficco, 615 F.3d 35 (1st Cir. 2010), 34 MPDLR 837; [1.04; 2.02(d)(ii)].
Federal Entitlements [1.05]
The Social Security Administration (SSA) revised its rules to enable state agency disability examiners to approve Social Security Disability and Supplemental Security Income claims—without obtaining prior approvals from the state agency’s medical or psychological consultant—under SSA’s rules for quick disability determinations or its compassionate allowance initiative. The exception is where the disability determination is made based on a claimant’s impairment(s) medically equaling a specified listing. This rule will be in effect for three years, unless it is terminated or extended beyond that date. 75 Fed. Reg. 626765 (Oct. 13, 2010), 34 MPDLR 987; [1.05(a)(ii)].
The Seventh Circuit reversed denial of Supplemental Security Income benefits on the ground that the administrative law judge (ALJ) failed to give “controlling weight” to a treating psychiatrist’s opinion that the claimant’s depression caused marked difficulties in social functioning and repeated episodes of decompensation. The ALJ mischaracterized the testimony of another doctor, who had agreed with the treating physician. Larson v. Astrue, 615 F.3d 1217 (7th Cir. 2010), 34 MPDLR 843; [1.05(a)(ii)].
Massachusetts highest court found that a psychiatrist, who devoted much of his practice to pain management, was covered under the psychotherapist-patient privilege statute. Because pain management is a subspecialty of psychiatry, the doctor was not spending too much time away from his psychiatric practice to qualify as a “psychotherapist.” Bd. of Registration in Med. v. Doe, 933 N.E.2d 67 (Mass. Sup. Jud. Ct. 2010), 34 MPDLR 851; [1.07(a)(vi)].
A California federal court decided that police officers, who used pepper spray against a man having a diabetic emergency and struck him with nunchakus and a steel baton, were not entitled to qualified immunity, where a factual issue existed as to whether the force used was excessive, particularly given the governmental interests at stake in arresting someone officers suspected of being intoxicated. Burns v. City of Redwood City, 2010 WL 3340552 (N.D. Cal. Aug. 25, 2010), 34 MPDLR 855; [1.08(h)(iv)].
Criminal Incompetency [2.01]
The California Supreme Court joined Massachusetts and Texas in ruling that protecting public safety by confining and treating sexually violent predators trumps a respondent’s right in such proceedings not to be tried or civilly committed while he or she is mentally incompetent. Moore v. Super. Ct. (L.A. Cnty.), 237 P.3d 530 (Cal. Sup. Ct. 2010), 34 MPDLR 860; [2.01(b)(i); 2.03(c)].
The Ninth Circuit, citing Sell v. United States, 539 U.S. 166 (2003), 27 MPDLR 548, reversed an involuntary antipsychotic medication order to restore the trial competency of a delusional defendant, where the government failed to show by clear and convincing evidence that the chosen medication was effective for defendant’s condition, and a defense expert testified that such medication could worsen defendant’s condition and cause tardive dyskinesia. United States v. Ruiz-Gzxiola, 2010 WL 3720211 (9th Cir. Sept. 24, 2010), 34 MPDLR 870; [2.01(d)(iv)].
The Fourth Circuit, also citing Sell, reversed an antipsychotic medication order to restore the trial competency of a fraud and identity theft defendant with a delusional order, finding that the government’s interest in prosecuting her was lessened because she already had been confined for a significant amount of time, she did not pose a risk to public safety, and the proposed medications had rarely, if ever, been tested on persons with delusions. United States v. White, 620 F.3d 401 (4th Cir. 2010), 34 MPDLR 871; [2.01(d)(iv)].
Diminished Culpability [2.02]
The Utah Supreme Court upheld the constitutionality of a state statute that allows murder defendants who acted under the influence of a delusion to reduce the criminal charges against them by one degree. Although the state bears the burden of proof beyond a reasonable doubt as to each element of a charged offense, this special mitigation defense does not contravene or rebut any of the elements of the murder charge. Utah v. Drej, 233 P.3d 476 (Utah Sup. Ct. 2010), 34 MPLDR 875; [2.02(b)].
The Massachusetts Supreme Court granted a new trial to a first-degree murder defendant because the trial court’s model criminal responsibility jury instruction may have led the jurors to conclude that any diminished capacity defense was precluded, where the defendant, who had bipolar and possible schizoaffective disorders, had voluntarily consumed alcohol on the night of the crime. Voluntary consumption of drugs or alcohol is not determinative if it can be shown that defendant’s mental disorder caused the lack of criminal responsibility. Massachusetts v. Berry, 931 N.E.2d 972 (Mass. Sup. Jud. Ct. 2010), 34 MPDLR 878; [2.02(e)(iv)].
Sexually Violent Predators [2.03]
A North Carolina federal court—recognizing that the U.S. Supreme Court in United States v. Comstock, 130 S. Ct. 1949 (2010), 34 MPDLR 413, did not preclude the possibility that the sexually dangerous persons commitment provisions under the Adam Walsh Child Protection Safety Act violate constitutional due process guarantees—found such violations because the sanctions imposed on respondents “‘are so punitive . . . that they may not legitimately be viewed as civil in nature.’” Offenders are subject to substantially the same confinement conditions as federal prisoners serving criminal sentences, as well as to double jeopardy because they are criminally detained based on their past convictions; the term “sexually violent conduct” is overbroad because it includes consensual sexual conduct; and the Act fails to provide offenders with an initial probable cause determination followed by a prompt judicial hearing to determine their sexual dangerousness. Timms v. Johns, 700 F. Supp. 2d 764 (E.D.N.C. 2010), 34 MPDLR 885; [2.03(b)(i)].
A divided North Dakota Supreme Court upheld a respondent’s commitment under that state’s sexually dangerous individual law based on his indecent exposure conviction. Although his crime did not involve a sexual act or sexual contact, he was committed because in his pre-polygraph interview for the commitment proceeding he had admitted to molesting young girls in the past. The dissent, noting the law’s punitive nature, opined that the respondent should have been entitled to criminal due process. In re Maedche, 788 N.W.2d 331 (N.D. Sup. Ct. 2010), 34 MPDLR 886; [2.03(b)(iii)].
The Third Circuit found that a Pennsylvania legislative scheme that requires certain types of sex offenders to have sex offender therapy if they wish to be paroled, but makes them ineligible for that program unless they admit to committing the crimes they were convicted of, did not violate the First Amendment or due process because there were legitimate penological reasons to require an admission of guilt. Newman v. Beard, 617 F.3d 775 (3d Cir. 2010), 34 MPDLR 891; [2.03(d)(ii)].
Offenders with Mental Disabilities [2.04]
The Eleventh Circuit upheld a lower court’s determination that Florida officials were deliberately indifferent to an inmate’s serious mental health needs, in violation of the Eighth Amendment, where state Department of Corrections (DOC) personnel repeatedly sprayed the inmate with toxic chemical agents while he was decompensating due to his mental condition and was unable to conform his behavior to prison standards. The suit had been filed originally by two mentally ill inmates, but the other inmate died in DOC custody four days before oral argument. Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010), 34 MPDLR 895; [2.04(a)(i)].
A California federal court refused to grant the state’s request to terminate a compliance plan intended to ensure that California prisoners with developmental disabilities are protected from serious injury, discrimination, and failures to provide them with reasonable accommodations in key aspects of prison life, including access to programs and activities, administrative proceedings, and self-care and daily living activities. The plan was part of a settlement agreement reached after the state had been sued for violating those prisoners’ rights under the Americans with Disabilities Act (ADA) Title II and the Rehabilitation Act §504. Termination of the settlement was unwarranted due to the continued violation of class members’ federal rights. Clark v. California, 2010 WL 3702641 (N.D. Cal. Sept. 16, 2010), 34 MPDLR 897; [2.04(a)(ii); 3.06(g)(ii)].
ADA Enforcement [3.02]
Addressing an issue of first impression, the Fifth Circuit reversed itself and found that city residents who use motorized wheelchairs only have a private right of action under the ADA Title II if the alleged noncompliance with the law—with respect to faulty sidewalks, curbs, or parking lots—has specifically denied them access to a service, program, or activity. This ruling is in contrast to Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002), 26 MPLDR 610, in which the Ninth Circuit held that “anything a public entity does,” including providing an accessible infrastructure, is a qualifying “service, program, or activity.” Frame v. City of Arlington, 616 F.3d 476 (5th Cir. 2010), 34 MPDLR 917; [3.06(c)(ix) & (k)].
Sovereign Immunity [3.04]
The Nebraska Supreme Court agreed that Congress validly abrogated the state’s sovereign immunity with respect to claims under the ADA Title II related to disability discrimination in public education, because a right to public education is particularly important. The student in this case alleged that he was dismissed from medical school based on his disability (depressive disorder). Doe v. Bd. of Regents of Univ. of Neb., 788 N.W.2d 264 (Neb. Sup. Ct. 2010), 34 MPDLR 925; [3.04(e)].
The Fifth Circuit ruled that a Texas federal court erred in requiring an employee to comply with her employer’s heightened standard—that she notify a third-party administrator within two days after each time she took intermittent Family and Medical Leave Act (FMLA) leave—where her employer already was aware of her need for FMLA leave. The employer had been extensively involved in her treatment where she had been treated in the employer’s emergency room, and her mother had contacted the employer three times. Saenz v. Harlingen Med. Ctr., L.P., 613 F.3d 576 (5th Cir. 2010), 34 MPDLR 934; [3.05(h)(ii)].
The Third Circuit reversed a lower court that had limited the scope of an Equal Employment Opportunity Commission (EEOC) third-party subpoena, which was part of an EEOC investigation of a supermarket chain store job applicant’s discrimination claim that she had been improperly denied a position based on a third-party vendor’s service assessment test. Granting access to the vendor’s validity studies to determine whether the test would adversely impact persons with disabilities was a proper investigative rationale, as long as the parties agreed to appropriate confidentiality to protect any trade secrets. EEOC v. Kronos Inc., 620 F.3d 287 (3d Cir. 2010), 34 MPDLR 940; [3.05(i)(ii)].
The Ninth Circuit reversed a lower court because, among other things, a factual issue existed whether an employer knew or should have known that the accommodations it provided to a deaf employee—agendas, contemporaneous notes, and written summaries—were insufficient to ensure effective communication for staff weekly meetings, job training, and understanding the employer’s anti-harassment policy and disciplinary actions. Although the “ADA does not require an employer to be clairvoyant . . . the employer has a continuing obligation to engage in the interactive process ‘when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing.’” EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103 (9th Cir. 2010), 34 MPDLR 943; [3.05(k)(i)].
Public Services [3.06]
The Ninth Circuit upheld a California federal court’s ruling that the state has a duty under the ADA Title II and the Rehabilitation Act §504 to provide reasonable accommodations to prisoners and parolees with disabilities in a county prison, but struck down the court-ordered system-wide relief, because the district court’s determination was based on single and potentially isolated incidents. Armstrong v. Schwarzenegger, 2010 WL 3465279 (9th Cir. Sept. 7, 2010), 34 MPDLR 957; [3.06(g)(ii)].
Congress enacted the Twenty-First Century Communications and Video Accessibility Act of 2010 to improve access by persons with vision, hearing, and other disabilities to modern communications technologies, television, and the Internet. Pub. L. No. 111-260, 124 Stat. 275 (2010), 34 MPDLR 987; [3.08(b)(iii)].
The First Circuit held that the Fair Housing Amendments Act preempted a Puerto Rico law—requiring condominium owners to obtain unanimous consent of other owners in order to make changes in the use of common property—where the law had been applied to prevent two owners with mobility impairments from permanently using two accessible parking spaces near their condominium as reasonable accommodations. Astralis Condo. Ass’n v. U.S. Dep’t of Hous. & Urban Dev., 620 F.3d 62 (1st Cir. 2010), 34 MPDLR 964; [3.09(g)(i)].
The Seventh Circuit ruled that a student, whose severe disabilities (Ehlers-Danlos Syndrome plus attention-deficit hyperactivity disorder) affected him physically and cognitively, did not have a covered disability under the Individuals with Disabilities Education Act (IDEA). Except in gym, his conditions did not adversely affect his educational performance sufficiently. He attained average performance and continued to improve academically. Marshall Joint Sch. Dist. No. 2 v. C.D. ex rel. Brian D., 616 F.3d 632 (7th Cir. 2010), 34 MPDLR 965; [3.10(a)(i)].
A D.C. federal court declared that the D.C. Public Schools (DCPS) failed to provide proper education and related services under the IDEA to as many as half of children ages three to five residing in D.C. who should have been eligible for those services. This included DCPS’s failures to meet its “child find” duty in identifying children with disabilities; provide a free appropriate public education to those who were eligible; and provide transition assistance for children with disabilities when they turned three. DL v. District of Columbia , 2010 WL 3154097 (D.D.C. Aug. 10, 2010), 34 MPDLR 967; [3.10(d)(i)].